Comments on the HHS' Flawed Post-Hobby Lobby RulesThu, 18 Dec 2014 | David MillonIn late August 2014, after suffering a defeat in the Supreme Court Hobby Lobby decision when the Court held that business corporations are "persons" that can "exercise religion," the Department of Health and Human Services ("HHS") proposed new rules defining "eligible organizations." Purportedly designed to accommodate the Hobby Lobby ruling, the proposed rules do not comport with the reasoning of that important decision and they unjustifiably seek to permit only a small group of business corporations to be exempt from providing contraceptive coverage on religious grounds. This comment letter to the HHS about its proposed rules makes several theoretical and practical points about the Hobby Lobby holding and how the proposed rules fail to reflect the Court’s reasoning. The letter also addresses other approaches to avoid in the rulemaking process and argues for rules that, unlike what the HHS has proposed, align with the Supreme Court’s reasoning while being consonant with generally ...… Read more...

Foreign Investments and the Market for LawThu, 11 Dec 2014 | Susan D. FranckIn this Article, Professors O'Hara O'Connor and Franck adapt and extend Larry Ribstein's positive framework for analyzing the role of jurisdictional competition in the law market. Specifically, the authors provide an institutional framework focused on interest group representation that can be used to balance the tensions underlying foreign investment law, including the desire to compete to attract investments and countervailing preferences to retain domestic policy-making discretion. The framework has implications for the respective roles of BITs and investment contracts as well as the inclusion and interpretation of various foreign investment provisions.… Read more...

The Open Access Advantage for American Law ReviewsWed, 03 Dec 2014 | Caroline OsborneOpen access legal scholarship generates a prolific discussion, but few empirical details have been available to describe the scholarly impact of providing unrestricted access to law review articles. The present project fills this gap with specific findings on what authors and institutions can expect.
Articles available in open access formats enjoy an advantage in citation by subsequent law review works of 53%. For every two citations an article would otherwise receive, it can expect a third when made freely available on the Internet. This benefit is not uniformly spread through the law school tiers. Higher tier journals experience a lower OA advantage (11.4%) due to the attention such prestigious works routinely receive regardless of the format. When focusing on the availability of new scholarship, as compared to creating retrospective collections, the aggregated advantage rises to 60.2%. While the first tier advantage rises to 16.8%, the mid-tiers skyrocket to 89.7%. The fourth ...… Read more...

The Still-Dwindled RevlonWed, 05 Nov 2014 | Lyman P. Q. JohnsonThis is a brief Response to Professor Mohsen Manesh’s extensive response to our original article, The Dwindling of Revlon. Our thesis is that today the iconic Revlon doctrine is, remedially, quite substantially diminished. Although Professor Manesh sets out to establish what he calls “the limits of Johnson’s and Ricca’s thesis,” we here maintain, as before, that there is little remedial clout to Revlon unless directors or others very significantly misbehave. We believe Professor Manesh’s various points serve only to underscore how unlikely it is that Revlon will be the basis for judicial sanctions. We also briefly criticize Delaware’s continuing use of the standard of conduct/standard of review construct in the fiduciary duty area. This rubric is unhelpful generally and strikingly so in the Revlon setting, as we note.… Read more...

Collection of Student Loans: A Critical ExaminationTue, 14 Oct 2014 | Doug RendlemanAlthough the collection of college student loans centers this article, some background precedes its main topic. It begins by defining and distinguishing federal and private student loans. Next is repayment of loans, postponing repayment through deferment, forbearance, extensions, and public-interest assistance and cancellation. Perkins loan deferment, forbearance, and cancellation follow. Delinquency and default are next, including collection fees and penalties, administrative wage garnishment, state and federal income-tax-refund offsets, federal benefits offsets, and professional-license suspension. The lender’s judicial collection is followed by the borrower’s limited affirmative defenses and post-judgment tools. A borrower may exit default through consolidation and rehabilitation. There are two types of statutory discharges: school-related discharges and discharges for death and disability. The article turns to discharge of student loans in federal bankruptcy; the scope of the ...… Read more...

BitPropertySun, 05 Oct 2014 | Joshua A.T. FairfieldProperty is the law of lists and ledgers. County land records, stock certificate entries, mortgage registries, UCC filings on personal property, United States Copyright and Patent registries of interests in intellectual property, bank accounts, domain name systems, and consumers’ Kindle eBook collections in the cloud — all are merely entries in a list, determining who owns what.
Each such list has suffered under a traditional limitation. To prevent falsification or duplication, a single entity must maintain the list, and users must trust (and pay) that entity. As a result, transactions must proceed at significant expense and delay. Yet zero or near-zero expense is the fuel of internet scalability. Until technologies get cheap and fast enough, they cannot benefit from the full power of the internet. Property transactions have not yet truly seen an internet revolution because they are constrained by the cost of creating centralized trusted authorities.
This article retheorizes ...… Read more...

Radical Shareholder PrimacyThu, 14 Aug 2014 | David MillonThis article, written for a symposium on the history of corporate social responsibility, seeks to make sense of the surprising disagreement within the corporate law academy on the foundational legal question of corporate purpose: does the law require shareholder primacy or not? I argue here that disagreement on this question is due to the unappreciated ambiguity in the shareholder primacy idea. I identify two models, the 'radical' and the 'traditional.' Radical shareholder primacy originated at the University of Chicago in the later 1970s, first in the work of Daniel Fischel and then in his co-authored writings with Frank Easterbrook. The key point is the assertion that corporate management is the agent of the shareholders, charged with maximizing their wealth. There is no legal authority for this claim; Fischel drew it from the financial economists Michael Jensen and William Meckling, who used the agency idea in a non-legal sense. So those who say that this notion of ...… Read more...

Revising Rules of Procedure for Third-Party Litigation FundingSun, 10 Aug 2014 | Victoria Shannon SahaniThis article proposes revisions to the Federal Rules of Civil Procedure to address issues raised by the growing phenomenon of third-party litigation funding. The article proposes pragmatic revisions to the existing language of specific rules regarding disclosures, discovery, privileges, sanctions, and class actions to address cases involving third-party litigation funding. These revisions will provide courts with disclosure requirements and a framework for handling known issues as they arise, unless (or until) recurring procedural problems with respect to third-party litigation funding become so widespread that more extensive rule revisions – or even new rules – become necessary. By implementing these proposed revisions, judges, legislators, parties, and attorneys will be able to gain a better sense of the prevalence of third-party litigation funding and its effects (if any) on litigation procedure. Finally, given the length of the rules revision process, this article ...… Read more...

Law and the History of Corporate Responsibility: Corporate GovernanceWed, 23 Jul 2014 | Lyman P. Q. JohnsonThis article is one part of a multi-article project on the role of law in the history of corporate responsibility in the United States. Key background material for the project is set forth in the introduction to an earlier article addressing corporate personhood. This paper deals with corporate governance while other articles address corporate purpose and corporate regulation.
Corporate responsibility concerns associated with corporate personhood, corporate purpose, and corporate regulation all ultimately relate to a far more basic issue: corporate governance. As the commercial demands of nineteenth century industrialization led to substantial displacement of the partnership form of business enterprise by large corporations with dispersed shareholders, control of these corporations—i.e., their governance—centered in the hands of senior managers, not investors themselves. This phenomenon of “separation of ownership from control” is quite different than in the typical partnership and ...… Read more...